INTERVIEW WITH ROBERT AUMANN
731
F
IGURE
8. At the 1994 Morgenstern Lecture, Jerusalem: Bob Aumann (front row), Don
Patinkin, Mike Maschler, Ken Arrow (second row, left to right), Tom Schelling (third
row, second from left); also Marshall Sarnat, Jonathan Shalev, Michael Beenstock, Dieter
Balkenborg, Eytan Sheshinski, Edna Ullmann-Margalit, Maya Bar-Hillel, Gershon Ben-
Shakhar, Benjamin Weiss, Reuben Gronau, Motty Perry, Menahem Yaari, Zur Shapira,
David Budescu, Gary Bornstein.
them; the legislature is for making laws, the executive for administering them, and
the courts for adjudicating disputes in accordance with them.
The view of judicial activism is that the courts actually have a much wider
mandate. They may decide which activities are reasonable, and which not; what
is “just,” and what is not. They apply their own judgment rather than written laws,
saying this is or isn’t “reasonable,” or “acceptable,” or “fair.” First and foremost
this applies to activities of government agencies; the court may say, this is an
unreasonable activity for a government agency. But it also applies to things like
enforcing contracts; a judicially active court will say, this contract, to which both
sides agreed, is not “reasonable,” and therefore we will not enforce it. These are
opposite approaches to the judicial function.
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SERGIU HART
In Israel it is conceded all around that the courts, and specifically the Supreme
Court, are extremely activist, much more so than on the Continent or even in
the United States. In fact, the chief justice of the Israeli Supreme Court, Aharon
Barak, and I were once both present at a lecture where the speaker claimed that the
Supreme Court justifiably takes on legislative functions, that it is a legislative body
as well as a judicial body. Afterwards, I expressed to Mr. Barak my amazement
at this pronouncement. He said, what’s wrong with it? The lecturer is perfectly
right. We are like the Sages of the Talmud, who also took on legislative as well as
judicial functions.
H: Do you agree with that statement about the Talmud?
A: Yes, it is absolutely correct.
There are two major problems with judicial activism. One is that the judiciary
is the least democratically constituted body in the government. In Israel, it is to a
large extent a self-perpetuating body. Three of the nine members of the committee
that appoints judges are themselves Supreme Court judges. Others are members
of the bar who are strongly influenced by judges. A minority, only four out of the
nine, are elected people—members of the Knesset. Moreover, there are various
ways in which this committee works to overcome the influence of the elected
representatives. For example, the Supreme Court judges on the committee always
vote as a bloc, which greatly increases their power, as we know from Shapley
value analyses.
In short, the way that the judiciary is constituted is very far from democratic.
Therefore, to have the judiciary act in a legislative role is in violation of the
principles of democracy. The principles of democracy are well based in game-
theoretic considerations; see, for example, my paper with Kurz called “Power and
Taxes” [37], which discusses the relation between power and democracy. In order
that no one group should usurp the political power in the country, and also the
physical wealth of the country, it is important to spread power evenly and thinly.
Whereas I do not cast any aspersions now on the basic honesty of the judges of
the Israeli Supreme Court, nevertheless, an institution where so much power is
concentrated in the hands of so few undemocratically selected people is a great
danger. This is one item.
H: The court not being democratically elected is not the issue, so long as the
mandate of the court is just to interpret the law. It becomes an issue when the
judicial branch creates the law.
A: Precisely. What is dangerous is a largely self-appointed oligarchy of people
who make the laws. It is the combination of judicial activism with an undemocrat-
ically appointed court that is dangerous.
The second problem with judicial activism is that of uncertainty. If a person
considering a contract does not know whether it will be upheld in court, he will
be unwilling to sign it. Activism creates uncertainty: maybe the contract will be
upheld, maybe not. Most decision-makers are generally assumed to be risk-averse,
and they will shy away from agreements in an activist atmosphere. So there will be
many potential agreements that will be discarded, and the result will be distinctly
suboptimal.
INTERVIEW WITH ROBERT AUMANN
733
H: But incomplete contracts may have advantages. Not knowing in advance
what the court will decide—isn’t that a form of incompleteness of the contract?
A: Incomplete contracts may indeed sometimes be useful, but that is not the
issue here. The issue is a contract on which the sides have explicitly agreed, but
that may be thrown out by the court. Ex ante, that cannot possibly be beneficial to
the parties to the contract. It might conceivably be beneficial to society, if indeed
you don’t want that contract to be carried out. A contract to steal a car should
be unenforceable, because car theft should be discouraged. But we don’t want to
discourage legitimate economic activity, and judicial activism does exactly that.
H: The uncertainty about the court’s decision may be viewed also as a chance
device—which may lead to a Pareto improvement. Like mutual insurance.
A: Well, okay, that is theoretically correct. Still, it is farfetched. In general,
uncertainty is a dampening factor.
In brief, for these two reasons—introducing uncertainty into the economy and
into the polity, and its undemocratic nature—judicial activism is to be deplored.
H: Another topic you wanted to talk about is war.
A: Barry O’Neill, the game theory political scientist, gave a lecture here a few
months ago. Something he said in the lecture—that war has been with us for
thousands of years—set me thinking. It really is true that there is almost nothing
as ever-present in the history of mankind as war. Since the dawn of history we have
had constant wars. War and religion, those are the two things that are ever-present
with us. A tremendous amount of energy is devoted on the part of a very large
number of well-meaning people to the project of preventing war, settling conflicts
peacefully, ending wars, and so on. Given the fact that war is so, so prevalent, both
in time and in space, all over the world, perhaps much of the effort of preventing
or stopping war is misdirected. Much of this effort is directed at solving specific
conflicts. What can we do to reach a compromise between the Irish Catholics in
the Republic of Ireland and the Protestants in North Ireland? What can we do to
resolve the conflict between the Hindus in India and the Moslems in Pakistan?
What can we do to resolve the conflict between the Jews and the Arabs in the
Middle East? One always gets into the particulars of these conflicts and neglects
the more basic problems that present themselves by the very fact that we have
had wars continuously. War is only apparently based on specific conflicts. There
appears to be something in the way human nature is constituted—or if not human
nature, then the way we run our institutions—that allows war and in fact makes it
inevitable. Just looking at history, given the constancy of war, we should perhaps
shift gears and ask ourselves what it is that causes war. Rather than establishing
peace institutes, peace initiatives, institutions for studying and promoting peace,
we should have institutions for studying war. Not with an immediate view to
preventing war. Such a view can come later, but first we should understand the
phenomenon.
It’s like fighting cancer. One way is to ask, given a certain kind of cancer, what
can we do to cure it? Chemotherapy? Radiation? Surgery? Let’s do statistical
studies that indicate which is more effective. That’s one way of dealing with
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